In the second phase, sometimes called
the ''dispositional'' phase, the issue is what to do once the
determination has been made that the individual is or is not mentally ill.� If
the court determines that the individual is not mentally ill, ''the
person shall be discharged forthwith.'' �ORS 426.130(1)(a).� If the court
finds that the person is mentally ill, the statute offers three
dispositional choices:� (1) release and dismissal; (2) conditional release; or
(3) civil commitment.� ORS 426.130(1)(b).

With respect to the second,
dispositional phase, the statute does not mention either a standard of proof or
a burden of persuasion.� Case law has filled the gap on the first of those two
matters, holding that the standard is a preponderance of the evidence.� State
v. Brenhuber, 146 Or App 719, 722, 934 P2d 550 (1997) (''[W]e have held
that in the dispositional phase of a mental commitment proceeding the proper
standard of proof is a preponderance of the evidence.'').� On the second of
the two matters, our cases are less clear, particularly when the dispositional
question is whether to release and dismiss because an individual, although
mentally ill, is willing to participate in voluntary treatment.

In some earlier cases, we have simply
addressed whether the record shows that an individual is willing to participate
in voluntary treatment, without addressing which party has the burden of
persuasion.� E.g., State v. Doe, 116 Or App 18, 21-22, 840 P2d
727 (1992).� More recently, in State v. Rainbolt, 184 Or App 661, 57 P3d
902 (2002), we assumed that it is the state that bears the burden of
demonstrating that a mentally ill individual is not willing to
participate in voluntary treatment.� We did not offer any explanation for our
assumption, but we did reverse an order of civil commitment because ''the
state did not prove by a preponderance of the evidence that appellant is
unwilling or unable to cooperate with and benefit from voluntary treatment with
the help of his family.''� Id. at 662.� More recently still, in State
v. D. F., 211 Or App 181, 189-90, 154 P3d 141 (2007), and State v. Lott,
202 Or App 329, 337, 122 P3d 97 (2005), rev den, 340 Or 308 (2006), we
observed that we may or may not have been correct in Rainbolt in
assuming that it is the state that must prove that a mentally ill person is not
willing to participate in voluntary treatment.� But in both cases, because the
record was sufficiently clear regardless of which party bears the burden of
persuasion, we declined to address the matter.

We address that matter in this case,
concluding that our assumption in Rainbolt was, in fact, incorrect.

We begin with the wording of ORS
426.130(1)(b)(A), which provides that the trial court must order the release of
the individual and dismiss the case if the person ''is willing and able to
participate in treatment on a voluntary basis'' and the person ''will
probably do so.''� The phrasing is in the affirmative--''is
willing and able'' and ''will probably do so.''� That
suggests that it is the mentally ill person who is assumed to bear the burden
of proving those facts.� The state, which is seeking commitment and not
release, would have no reason to attempt to prove that the mentally ill person is
willing and able to participate in voluntary treatment and will probably
do so.

Consistent with that observation, the
facts that a mentally ill person is willing and able to participate in
voluntary treatment and probably will do so are not even mentioned as criteria
for commitment.� If the legislature had intended to require the state to prove
the negative--that the mentally ill person is not willing and able to
participate in voluntary treatment and is not likely to do so--as prerequisites
to commitment, it could have done so.� Instead, the legislature included those
factors as prerequisites to release and dismissal, something that the mentally
ill person presumably would seek.� Ordinarily, the party seeking relief bears
the burden of proving all facts necessary to obtain that relief.� See, e.g.,
OEC 305 (''A party has the burden of persuasion as to each fact the
existence or nonexistence of which the law declares essential to the claim for
relief or defense the party is asserting.''); ORS 183.450(2) (''The
burden of presenting evidence to support a fact or position in a contested case
rests on the proponent of the fact or position.''); Benaman v. Andrews,
213 Or App 467, 476, 162 P3d 280 (2007) (party seeking relief bears burden of
proving facts on which that relief is conditioned).� It would seem to follow
that the legislature intended that, to obtain release and dismissal of a civil
commitment, the mentally ill person must establish that he or she is willing to
participate in voluntary treatment and will probably do so.

With the foregoing principles in
mind, we turn to the evidence in this case, beginning with the question whether
the state proved, by clear and convincing evidence, that appellant is mentally
ill, that is, that she suffers from a mental disorder that causes her to be a
danger to herself or to others.� In this case, there appears to be no dispute
that appellant suffers from a mental disorder, viz., ''major
depression with acute suicidality.''� The question is whether there is
sufficient evidence that appellant is a danger to herself because of that
mental disorder.

In previous cases, we have concluded
that, to meet that burden, the state must show that an appellant's mental
disorder either resulted in actual harm to herself or that the mental disorder
''created situations likely to result in harm.''� M. L. F., 220
Or App at 634.� Although the threat of harm need not be immediate, it
''must exist in the near future.''� State v. Jacobson, 142 Or
App 371, 377, 922 P2d 670 (1996).� An expressed desire to die, by itself, is not
sufficient to meet that burden.� State v. Simon, 180 Or App 255, 262-64,
42 P3d 374 (2002).� Nor is the fact that an individual has attempted suicide
years earlier.� State v. Puha, 208 Or App 453, 465, 144 P3d 1044 (2006).

In this case, there is evidence that
appellant has a lengthy history of depression and suicide attempts.� The two
most recent attempts were serious in nature.� They resulted in sufficient
actual physical harm to require treatment in intensive care and substantial
periods of hospitalization.� Following the most recent attempt, appellant
commented that she was not happy to be alive.� She admitted that she continued
to be ''fragile'' and ''vulnerable'' to her addiction to
prescription medications and that she had contemplated using a gun to end her
life.� Both examiners reported that, because of her mental disorder, appellant
is a risk for future suicide attempts.� On the basis of those facts, we
conclude that the state has met its burden of proving, by clear and convincing
evidence, that appellant is mentally ill.

We turn to the question of
disposition.� Appellant contends that the state failed to demonstrate that she
is unwilling to and probably will not participate in voluntary treatment.� As
we have concluded, however, it is not the state's burden to make such a
demonstration; rather, it is appellant's burden to prove by a preponderance of
the evidence that, notwithstanding the trial court's determination that she is
mentally ill, she should be released because she is affirmatively willing to
participate in voluntary treatment and probably will do so.

In this case, there is little, if
any, evidence that appellant is willing to participate in voluntary treatment.�
There is some evidence that appellant expressed willingness to participate in
treatment of her drug addiction, but there is none that she has ever
voluntarily sought treatment for her depression or that she is interested in
doing so now.� We conclude that appellant did not meet her burden of
demonstrating that she is willing to participate in voluntary treatment and
that she will probably do so.